Impossible: The Case Against Lee Harvey Oswald

[Barry Krusch]

EXCERPT #36: FROM IMPOSSIBLE: THE CASE AGAINST LEE HARVEY OSWALD, VOLUME ONE, CHAPTER 8, "ELEMENTS OF THE CASE AGAINST LEE HARVEY OSWALD"

There are two techniques used to authenticate evidence, ready identification and chain of custody. Ready identification is used when an item has a unique, one-of-a-kind characteristic, and chain of custody is used when an object does not have a uniquely identifying characteristic.

[Barry Krusch]

EXCERPT #37: FROM IMPOSSIBLE: THE CASE AGAINST LEE HARVEY OSWALD, VOLUME ONE, CHAPTER 8, "ELEMENTS OF THE CASE AGAINST LEE HARVEY OSWALD"

As Steven Emanuel and Joel Friedman explained, “[t]he chain of custody method of authentication requires that every ‘link’ in the chain of custody — every person who has handled or possessed the object since it was first recognized as being relevant to the case — must explain what he did with it.” (Emanuel On Evidence, p. 465). This distinction was articulated by the Supreme Court of Montana in State of Montana v. Sox, 212 Mont. 488 at 491-2; 689 P.2d 252 (1984):

There are essentially two recognized methods of identifying physical evidence: ready identification and chain of custody.

The former method is used when the article has a unique characteristic that makes it readily identifiable. The exhibits in the instant case lend themselves to ready identifiability; the computer components had Canadian stock stickers attached to them and one component had even had its sticker realigned in a unique manner by Barnhart. The guitar too, was very unique and easily identifiable.

In his book on evidentiary foundations, Imwinkelried assures us that when introducing a readily identifiable piece of evidence, “the foundation is complete so long as the witness testifies that he or she previously observed the characteristic and presently recalls the characteristic.” E. Imwinkelried,

Evidentiary Foundations

(1980), at p. 81. Only when the evidence is so commonplace as to be non-unique or when the witness has failed to observe its uniqueness is it necessary to lay a chain of custody foundation.

Edited July 11, 2012 by Barry Krusch

[Barry Krusch]

EXCERPT #38: FROM IMPOSSIBLE: THE CASE AGAINST LEE HARVEY OSWALD, VOLUME ONE, CHAPTER 8, "ELEMENTS OF THE CASE AGAINST LEE HARVEY OSWALD"

The Alabama Supreme Court in 1991 explained the significance of the chain of custody, as well as the significance of the concept of “links “and “missing links” (Ex parte Holton, 590 So.2d 918, 920 (Ala. 1991); emphasis supplied):

The chain of custody is composed of ‘links’. A ‘link’ is anyone who handled the item.

The State must identify each link from the time the item was seized. In order to show a proper chain of custody, the record must show each link and also the following with regard to each link’s possession of the item: (1) [the] receipt of the item; (2) [the] ultimate disposition of the item, i.e., transfer, destruction, or retention; and (3) [the] safeguarding and handling of the item between receipt and disposition.

If the State, or any other proponent of demonstrative evidence, fails to identify a link or fails to show for the record any one of the three criteria as to each link, the result is a ‘missing’ link, and the item is inadmissible.

If, however, the State has shown each link and has shown all three criteria as to each link, but has done so with circumstantial evidence, as opposed to the direct testimony of the ‘link’, as to one or more [of the] criteria or as to one or more links, the result is a ‘weak’ link. When the link is ‘weak’, a question of credibility and weight is presented, not one of admissibility.

Edited July 12, 2012 by Barry Krusch

[Barry Krusch]

EXCERPT #39: FROM IMPOSSIBLE: THE CASE AGAINST LEE HARVEY OSWALD, VOLUME ONE, CHAPTER 8, "ELEMENTS OF THE CASE AGAINST LEE HARVEY OSWALD"

How are links authenticated? Through a series of technical requirements. These technical requirements for establishing a chain of custody are extremely rigorous. Consider this description of proper protocol for a drug prosecution (“Chapter 10. Authentication And Identification,” “Testimony of Witness With Knowledge,” 31 Fed. Prac. & Proc. Evid. § 7106b (1), 38-40; paragraph separations added by author; emphasis supplied):

n a drug prosecution a chain of custody for contraband seized from the defendant would typically be established in the following manner.

The government might first call as a witness the arresting officer to testify that he found in defendant’s possession a bag containing a white powder. This witness would testify that he kept the bag and its contents

in his possession

and secure until he placed it into an evidence container and

sealed that container in a way that would reveal if it had been opened

. The officer then might

testify that he gave the container to a police chemist.

The chemist then might be called as a witness to confirm that, when he received the container,

it had not been opened

. The chemist might further testify that he opened the container, removed the contents, and

conducted tests to establish the nature of those contents

. Finally, the chemist would testify that he placed the contents back into the container, resealed it, brought it to court, and that

the container shows no indication that it subsequently had been opened.

This foundation is sufficient to authenticate the bag and its contents because the perceptions of the two witnesses, combined with the circumstantial evidence that the container had not been disturbed except by the chemist, would be sufficient to sustain a finding that the exhibit was the same item and in the same condition as the item found in defendant’s possession. Further,

the chemist now would be permitted to testify as to the results of his analysis of the evidence since the chain of custody tying the evidence to the defendant establishes the relevance of that testimony

.

[Barry Krusch]

EXCERPT #40: FROM IMPOSSIBLE: THE CASE AGAINST LEE HARVEY OSWALD, VOLUME ONE, CHAPTER 8, "ELEMENTS OF THE CASE AGAINST LEE HARVEY OSWALD"

The standards in a murder case with a death penalty as a consequence, needless to say, can be no less rigorous.

The bottom line: if the key evidence in The Case Against Oswald does not satisfy legal requirements that have been used to authenticate evidence, it is at the very least not admissible. And, in certain circumstances, a failure to meet these parameters may be seen as meta-evidence that the evidence has been manufactured, which would taint the credibility of all the other evidence in the case.

[Barry Krusch]

EXCERPT #41: FROM IMPOSSIBLE: THE CASE AGAINST LEE HARVEY OSWALD, VOLUME ONE, CHAPTER 8, "ELEMENTS OF THE CASE AGAINST LEE HARVEY OSWALD"

ELEMENT TWO

Lee Harvey Oswald, at the time of the assassination, was present at the window from which it was alleged that the shots were fired (the sixth floor of the southeast window of the Texas School Book Depository), and the weapon purported to be Oswald’s Mannlicher-Carcano 6.5 mm Italian rifle was in Oswald’s possession at the time it was fired.

If the shots were fired from the southeast window of the sixth floor of the Texas School Book Depository, and Oswald was not even at that window, then obviously he did not fire the shots. Moreover, even if he was at the window, if he was not holding the rifle, then obviously he did not fire the shots. In either of these situations the proposition would be positively disproven.

[Barry Krusch]

EXCERPT #42: FROM IMPOSSIBLE: THE CASE AGAINST LEE HARVEY OSWALD, VOLUME ONE, CHAPTER 8, "ELEMENTS OF THE CASE AGAINST LEE HARVEY OSWALD"

ELEMENT THREE

A rifleman of Lee Harvey Oswald’s capabilities could plausibly have fired 3 separate shots using the Mannlicher-Carcano within the elapsed time of the shooting and with the requisite accuracy required.

The assassin, or assassins, had a challenging shot. For a period of time, there was an oak tree between the sixth floor window and the President’s limousine, which was traveling at approximately eleven miles per hour. The final shot that hit the President was approximately 80 yards from the sixth-floor window, 20 yards shy of a football field away. In addition, the complete shot sequence from the first to the last shot took place anywhere from approximately 5.5 to 7 seconds, very close to the limits established by the Warren Commission regarding how fast the rifle could be fired.

That’s not all: even if Oswald were the best shot in the world, the Mannlicher-Carcano had to be of a certain level of quality for the shot to be made. For example, the scope on the rifle should have been calibrated with its target (in other words, if you have a bull’s-eye in the crosshairs, and instead hit the outer ring of a target, not to mention missing it entirely, you do not have a properly-sighted scope!). The same reasoning would be true for the bolt and firing pin and any other rifle component.

If Oswald cannot make the shot, he cannot be a gunman, lone or otherwise.

[Barry Krusch]

EXCERPT #43: FROM IMPOSSIBLE: THE CASE AGAINST LEE HARVEY OSWALD, VOLUME ONE, CHAPTER 8, "ELEMENTS OF THE CASE AGAINST LEE HARVEY OSWALD"

ELEMENT FOUR

Lee Harvey Oswald was not framed for the murder of President John F. Kennedy.

Issues with the evidence against Lee Harvey Oswald may lead to an inference, if not an outright deduction, that Oswald was framed for murder. If that is the case, then we will be led on a path to gather evidence outside the official case that can be used to confirm and/or further develop this hypothesis. If we take that route, we may find an extraordinary amount of evidence not considered by the Warren Commission which demonstrates that very point. The more evidence that is found, the lower the confidence level for this element, which could easily drop below the threshold requirement.

If this element is not established beyond a reasonable doubt, then there is a significant possibility, if not certainty, that Oswald was framed, and if that is the case, the only possible verdict that could be returned is “not guilty.”

[Guest Dale Thorn]

Barry, Congrats on publishing Volume 1 of your book. I've just added it to my Kennedy Catalog website:

You are, of course, dead wrong about Lee Oswald, but I still commend you for getting your book published and made available on Amazon. (I like the cover too. Looks nice.)Two Things That Prove Oswald's Guilt

Good to see David posting here. If he wasn't I'd be concerned he was somewhere else getting into trouble. But since we have those two things that prove beyond a reasonable doubt Oswald's guilt, I'd better take that wrapped up package of hangers out of my car before someone thinks I'm about to go on a shooting rampage. And g_d forbid there be an oil stain on the package. Ah, but why worry, it can always be added later. As to the rifle assassinating the president, who knows? The rifle could have been anywhere during the actual shooting, although I'd suggest it would have to be fairly close to the car since the scope was unusable. In any case, if I were taking the Single Bullet scenario to a real jury, I think I'd revert back to the Mauser and say the Carcano was also found but not fired, just so we have a real rifle capable of such incredible performance. Tying the Mauser to Oswald wouldn't be a problem - just say DeMohrenschildt gave it to him.

[Guest Dale Thorn]

Just look at all the posts on this forum, and ask yourself how much closer any one of them has moved your average conspiracy theorist towards reality.

I've taken the position for a long time that Conspiracy Theorist is one of the rare hate-word terms still allowed in general discourse, especially major media, to characterize honest persons and real researchers as just the opposite. Since Barry's book is about evidence, I'd suggest looking at that instead of using the disinformation technique of character assassination.

[Guest Dale Thorn]

Let's ignore all witness testimony then. Enough evidence remains to convict Oswald.

State your very best couple of evidences then, since you're dealing with a lot of very knowledgable readers here who will quickly deconstruct anything less than the best.

[Guest Dale Thorn]

We can say with near certainty that after JFK's head exploded, Lee Harvey Oswald left the Texas School Book Depository (a building which overlooks the spot where JFK's head exploded, and into which he took his rifle earlier that day), then went home to get his revolver, which he used to murder a policeman before being captured.

He does seem to have gotten a revolver, but there are only two *reasonable* possibilities for shells found near Tippit's body. 1) The revolver shells were planted, not ejected from the gun, or 2) They were ejected by the semi-automatic handgun used to shoot Tippit. Don't even try to pass the notion to this jury member that Oswald would frame himself by emptying a revolver next to Tippit's body.

EDIT: It might also help for persons who have experience with low-cost revolvers to describe the process of emptying and reloading. In the JFK film they have one scene of that based on the Oswald example, but where they show the shells falling out easily while the killer is moving quickly, it doesn't square with my experience. In my experience with the lower-cost revolvers, the shells are usually difficult to remove, more often than not requiring use of the ejector tool, and you can't do that while running.

Edited August 6, 2012 by Dale Thorn

[Guest Dale Thorn]

Note that the Supreme Court is unequivocal on this point: proof beyond a reasonable doubt must be achieved for every fact necessary to constitute the crime: every element of every proposition.

The problem you'll have getting this to sink in to the general consciousness is 49 years of acceptance by the JFK research community to argue around this standard. Our acceptance of rumor, false evidence, speculation etc. for argument's sake, along with our acceptance of the notion of 'Conspiracy Theory' and 'Conspiracy Theorists' has cost us a lot of traction in this case.

[Guest Dale Thorn]

The first round was (obviously) already chambered before the firing began.

Therefore: Time elapsed for the firing of 1st round: 0.00 seconds.

2.3 seconds was required to eject the 1st round's casing and to chamber the 2nd round, and to fire it. Total elapsed time so far is only 2.3 seconds.

Another 2.3 seconds was required to eject the second round's casing and to chamber the 3rd round and to fire it.

Total elapsed time required to fire all three rounds: 4.6 seconds. The "problem" is the apparent "grouped" timing of the 2nd and 3rd shots and the extra time needed for the re-acquisition of the target between shots 1 and 2, and then again between shots 2 and 3.....

One of the interesting points about the shooting sequence based on the assumption of all shots originating in the 6th floor sniper's nest is the trajectory down to the curb near where James Tague was standing. From what I remember, that shot is very, very wide of the president's car. It's hard to believe it was accidental (when shot from the sniper's nest).

[Barry Krusch]

Note that the Supreme Court is unequivocal on this point: proof beyond a reasonable doubt must be achieved for every fact necessary to constitute the crime: every element of every proposition.

The problem you'll have getting this to sink in to the general consciousness is 49 years of acceptance by the JFK research community to argue around this standard. Our acceptance of rumor, false evidence, speculation etc. for argument's sake, along with our acceptance of the notion of 'Conspiracy Theory' and 'Conspiracy Theorists' has cost us a lot of traction in this case.

Indeed.